An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 4 October 2005
IN THE MATTER OF: New Hanover County
No. 04 J 231
Appeal by juvenile from judgment entered 18 November 2004 by
Judge Shelly S. Holt in New Hanover County District Court. Heard
in the Court of Appeals 24 August 2005.
Attorney General Roy Cooper, by Assistant Attorney General
Christine Goebel, for the State.
Hosford & Hosford, P.L.L.C., by Sofie W. Hosford, for
Defendant (D.B.B.) appeals from an adjudication of being
delinquent and responsible for committing sexual battery and simple
assault and an order of probation for a period of twelve months. We
reverse and remand.
The State presented the following evidence at trial: On 31
March 2004, the victim and her friend (Shanice) were playing in the
park at the Resource Center after school. Three boys, Tymir,
Ja'hie and defendant approached the two girls and began chasing the
victim and calling her names. Defendant then kicked the victim
with his roller skates in her stomach. The victim was then tripped
by one of the other two boys and defendant held her back down tothe ground. After the victim was on the ground, Tymir and Ja'hie
opened her coat, pulled her shirt down and touched her breasts.
Defendant was watching as the other two did this to the victim.
Officer Rinehart, an investigating officer testified that the
victim stated that after she stood up, one of the boys was holding
her hands behind her back and at that time she felt one of them
rubbing his penis on her. Both investigating officers testified
that it is unknown as to which boy was behind the victim at this
point. Officer Irving testified that the victim did not think that
it was defendant who rubbed his penis on her, but rather one of the
other two boys.
After the incident, the victim went and told her mother what
happened. The victim's mother then sent her to tell the Director of
the Resource Center, Veronica Bidding. Bidding testified at trial
that after learning of the incident she questioned the three boys
involved. She stated that none of the boys denied what had happened
and that when she told them that she was calling the police they
all stated that they did not care.
Two investigating officers testified at trial, Officer Irving
and Officer Rinehart. Officer Rinehart testified to statements by
Ms. Bidding that defendant told her that he tried to pull the
victim's pants down. On the other hand, Officer Irving testified
that Ms. Bidding stated on the following day that defendant had
instead admitted to taking the victim's jacket off. At trial Ms.
Bidding testified that defendant admitted to nothing, but did not
deny anything either. The victim and Shanice testified that afterdefendant kicked the victim with his roller skate, he just watched
and did not participate further.
At the close of the State's evidence and again at the close of
all the evidence, defendant made a motion to dismiss the charge of
sexual battery. The court denied the motion. The judge found that
sexual battery had been committed by defendant in pulling down her
bra, exposing her breasts and exposing his penis in an attempt to
penetrate her from behind. The trial judge also found that
defendant committed simple assault by unlawfully and willfully
jumping on the victim's back and knocking her to the ground. The
court then adjudicated defendant delinquent and responsible for
committing sexual battery and simple assault and ordered probation
for a period of twelve months.
Defendant now appeals.
On appeal, defendant does not assign any error as to the
simple assault delinquent adjudication and therefore it is not
addressed by this Court.
Defendant, however, does argue on appeal that the district
court judge erred in denying defendant's motion to dismiss the
charge of sexual battery at the close of the evidence. We agree.
In ruling on a motion to dismiss for insufficient evidence
the trial court must consider the evidence in the light most
favorable to the state, which is entitled to every reasonable
inference which can be drawn from the evidence. State v.
, 322 N.C. 548, 556-57, 369 S.E.2d 569, 574 (1988).There must, however, be substantial evidence of each essential
element of the offense charged, together with evidence that
defendant was the perpetrator of the offense. Id.
evidence is relevant evidence that a reasonable mind might accept
as adequate to support a conclusion. State v. Olson,
330 N.C. 557,
564, 411 S.E.2d 592, 595 (1992). 'Circumstantial evidence may
withstand a motion to dismiss and support a conviction even when
the evidence does not rule out every hypothesis of innocence.'
State v. Fritsch
, 351 N.C. 373, 379, 526 S.E.2d 451, 455 (citation
omitted), cert. denied,
531 U.S. 890, 148 L. Ed. 2d 150 (2000). If
the evidence presented is circumstantial, the court must consider
whether a reasonable inference of defendant's guilt may be drawn
from the circumstances. Id.
However, if the evidence is
sufficient only to raise a suspicion or conjecture as to either the
commission of the offense or the identity of the perpetrator, the
motion should be allowed. State v. Powell
, 299 N.C. 95, 261 S.E.2d
The evidence on the issue of identity was: Three boys were
chasing the victim through the playground. Defendant kicked the
victim with his roller skate and she fell to the ground. After
falling to the ground, defendant held the victim on the ground by
placing his hands on her back. After that, the other two boys,
Tymir and Ja'hie, pulled down the victim's shirt and began to touch
her breasts. After the victim was off the ground and standing up,
someone went behind her, unzipped his pants and began to rub his
penis on her. The judge found that sexual battery had been committed by
defendant in pulling down the victim's bra, exposing her breasts
and exposing his penis in an attempt to penetrate her from behind.
There is absolutely no evidence in the record, even taken in the
light most favorable to the State, that defendant pulled down the
victim's bra and exposed her breasts. Neither the victim nor any
witness stated that defendant participated in pulling down the
victim's shirt or touching her breasts.
As to exposing his penis, even taking this evidence in the
light most favorable to the State, the judge could not reasonably
infer from it that defendant was the person who came up behind the
victim and rubbed his penis on her. The court should not engage in
mere speculation. In the instant case, there is evidence that three
boys were involved in pushing the victim to the ground. After that,
two of the boys, Tymir and Ja'hie, pulled down her bra and touched
her breasts. After the victim was again standing, one of the boys
held her hands behind her back and at that time she felt one of
them rub her penis on her. The only reasonable inference that can
be taken from this evidence is that one of the three boys pulled
down his pants and touched the victim with his penis. There is no
evidence that defendant was the one who engaged in this act.
Therefore, where the evidence only allows an inference of suspicion
and conjecture that defendant was the perpetrator of the crime, the
motion to dismiss as to sexual battery should have been granted.
Accordingly, we reverse as to the sexual battery adjudication
and remand for sentencing in accordance with this opinion. Reversed and remanded.
Judges McGEE and JACKSON concur.
Report per Rule 30(e).
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